UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY
February 29, 1972
YOUNG WOMEN'S CHRISTIAN ASSOCIATION OF PRINCETON, NEW JERSEY et al., Plaintiffs,
George F. KUGLER, Jr., Attorney General of the State of New Jersey, Defendant. Joanne ABRAMOWITZ, et al., Plaintiffs, v. George F. KUGLER, Jr., Attorney General of the State of New Jersey, et al., Defendants
The opinion of the court was delivered by: FORMAN
FORMAN, Circuit Judge.
Two cases raising numerous constitutional challenges to the New Jersey abortion and related statutes are presented for disposition here. Plaintiffs in the first suit, Y.W.C.A. v. Kugler, No. 264-70 (Y.W.C.A.), are nine physicians, two of whose licenses have been revoked following prosecution under the challenged statutes; three women appearing for themselves and on behalf of the membership of the New Jersey Branch of the Women's International League for Peace and Freedom; and one woman appearing for herself and on behalf of the Young Women's Christian Association of Princeton, New Jersey. George F. Kugler, Jr., the Attorney General of the State of New Jersey, is named as defendant. Plaintiffs contend that N.J.S.A. 2A:87-1
deprive physicians and women of constitutional rights guaranteed by the First, Fourth, Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments. Jurisdiction is invoked under 28 U.S.C. §§ 1331, 1343, 2201, 2202, 2281, 2284 and 42 U.S.C. § 1983.
Plaintiffs in the second suit, Abramowitz v. Kugler, No. 431-70 (Abramowitz), are approximately 1200 women, appearing for themselves and on behalf of all other New Jersey women similarly situated and allegedly suffering violations of their constitutional rights. In addition to the Attorney General of the State of New Jersey, plaintiffs name as defendants Lloyd W. McCorkle, Commissioner of Institutions and Agencies of the State of New Jersey, and Newark Beth Israel Medical Center.
Plaintiffs claim that N.J.S.A. 2A:87-1,
violate the rights of women under the First, Fourth, Fifth, Ninth, Fourteenth and Nineteenth Amendments to the Constitution. Jurisdiction is invoked under the foregoing Amendments and under 28 U.S.C. §§ 1331, 1343, 2201, 2202, 2281, 2284, 42 U.S.C. § 291 et seq. (the Hill-Burton Act), 42 U.S.C. § 1396 et seq. (Medicaid), and 42 U.S.C. § 1983.
A three-judge court was convened pursuant to 28 U.S.C. § 2284, in both cases, which were consolidated for purposes of a hearing and all further proceedings. Briefs were filed and oral arguments were presented. Plaintiffs seek summary judgment on requests for a declaratory judgment that the statutes respectively challenged are unconstitutional, and seek injunctions against their operation and enforcement. In addition, two of the plaintiff-physicians in Y.W.C.A. seek expungement of criminal records resulting from their convictions under the statute, and the return of their medical licenses, by order of this court.
Permission to appear as amici curiae was granted to the Planned Parenthood Federation of America, the New Jersey Right to Life Committee, the Christian Action Foundation and the New Jersey Catholic Conference, on all of whose behalf briefs were submitted.
Defendants first contend that plaintiffs lack standing because they have not shown the existence of a case or controversy sufficient to invoke the jurisdiction of the court, and the issues raised are of a political and social, rather than a legal, nature and should properly be left to the state legislature for resolution.
Article III, sec. 2 of the Constitution, which limits judicially cognizable issues to those involving an actual "case" or "controversy," is the source of the standing requirement and, although outwardly simple, reflects principles fundamental to the operation of our judicial system:
"In part those words limit the business of federal courts to questions presented in an adversary context and in a form historically viewed as capable of resolution through the judicial process. And in part those words define the role assigned to the judiciary in a tripartite allocation of power to assure that the federal courts will not intrude into areas committed to the other branches of government. Justiciability is the term of art employed to give expression to this dual limitation placed upon federal courts by the case-and-controversy doctrine."
In addition, the standing requirement reflects a judicial rule of self-restraint, designed to avoid passing upon prematurely raised or ill-defined controversies involving constitutional questions.
Since the passage of the Declaratory Judgments Act in 1934,
it has been said that the Act "intended to liberalize conceptions of justiciability".
It was not, however, intended to enlarge the jurisdiction of the courts,
and has in no way diminished the necessity of a party seeking a declaratory judgment to establish a case or controversy and thus, the standing requisite to the maintenance of a suit. This is manifest from the language of the statute itself
and from the Supreme Court's exposition of the prerequisites to a declaratory judgment:
"Basically, the question in each case is whether the facts alleged, under all the circumstances, show that there is a substantial controversy, between parties having adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a declaratory judgment."
Expressing these principles in another way, the Court has stated that:
"The fundamental aspect of standing is that it focuses on the party seeking to get his complaint before a federal court and not on the issues he wishes to have adjudicated. The 'gist of the question of standing' is whether the party seeking relief has 'alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court
so largely depends for illumination of difficult constitutional questions.' Baker v. Carr, 369 U.S. 186, 204 [82 S. Ct. 691, 703, 7 L. Ed. 2d 663] (1962)."
These principles have been reaffirmed in Golden v. Zwickler:
"No federal court, whether this Court or a district court, has 'jurisdiction to pronounce any statute, either of a State or of the United States, void, because irreconcilable with the Constitution, except as it is called upon to adjudge the legal rights of litigants in actual controversies.' Liverpool, N.Y. & P.S.S. Co. v. Commissioners [of Immigration], 113 U.S. 33, 39 [5 S. Ct. 352, 355, 28 L. Ed. 899] (1885)." (Emphasis supplied).
Examining the allegations of plaintiff-physicians in Y.W.C.A. in light of these principles it is clear that they have fulfilled both constitutional and judicially formulated standing requirements. They allege that the abortion statute is vague on its face and as applied in violation of the specificity requirement of the Fourteenth Amendment; that it deprives physicians of the right to practice medicine according to the highest standard of medical practice, and that it violates the rights of physicians and their women patients to privacy in their physician-patient relationships, as guaranteed by the First, Fourth, Fifth, Ninth and Fourteenth Amendments.
As a result of prosecutions under the statute, two of the plaintiff-physicians have lost their licenses to practice medicine and one was incarcerated at the time this action was commenced. In addition, all allege that they have been forced to turn away patients seeking advice and information about the possibility of obtaining abortions.
In light of these circumstances, Tileston v. Ullman,
emphasized by defendants to oppose standing, is clearly distinguishable. In Tileston, a physician challenged Connecticut's contraceptive statutes as violative of his patients' constitutional rights, but failed to allege any violation of his own personal or property rights. On the basis of these allegations it was held that no case or controversy existed as to him. In the present case, on the contrary, physicians have fully alleged past, present and continuing violations of their own liberties. Nor is this court persuaded by the reasoning applied in Doe v. Randall,
where the court held that no case or controversy had been presented by a physician who had performed an abortion, but against whom no indictment had been returned. The fact of prior prosecutions under the abortion statute, and the allegations of violations of plaintiff-physicians' own constitutional rights are sufficient to establish a prima facie case or controversy. Thus, the physicians clearly have standing.
Moreover, the violations of their constitutional rights alleged by plaintiff-physicians are closely interwoven with and inseparable from the allegations they make on behalf of their women patients for violations of their constitutional rights. The contention that the alleged rights to freely practice medicine according to the highest standard of medical practice, and to privacy in physician-patient relationships entitle physicians to advise and direct women patients concerning abortion, and to perform abortions, is inextricably linked with and dependent upon adjudication of the alleged right to privacy of their patients in securing abortions. Thus, it is appropriate here to grant plaintiff-physicians standing to litigate the alleged deprivations of the constitutional rights of their women patients.
Plaintiffs numbering approximately 1200 in Abramowitz claim standing on the basis that they belong to, and appear on behalf of, the class of New Jersey women "who as women . . . suffer under the New Jersey abortion laws." In their complaint, as amended, brief and oral argument they assert that New Jersey women constitute the class most directly affected by the abortion statute, and that there is "no person with a greater personal stake in the question of the constitutionality of the New Jersey abortion statute than any fertile woman of child-bearing age." Plaintiffs argue that such a woman may at any time experience an unwanted or accidental pregnancy, in which case she will be forced either to bear an unwanted child or to risk the hazards of an illegal "back-street" abortion. Plaintiffs contend further that these consequences are forced upon women by operation of the statute, in violation of their constitutional rights to life and liberty and equal protection of the laws under the Fourteenth Amendment, and their right to privacy under the Ninth Amendment. They argue additionally that the effect of the statute in compelling them to bear unwanted children is to perpetuate an inferior status which the Nineteenth Amendment was intended to eradicate, and that the statute violates the proscription against an establishment of religion and the free exercise thereof under the First Amendment. Plaintiffs claim finally that the period of time available during pregnancy is insufficient for full litigation, and that, practically, they will be unable to redress deprivations of their constitutional rights without a grant of standing here.
It is apparent that the alleged deprivations of constitutional rights depend upon the contingency of pregnancy. It is only then that women must choose between bearing an unwanted child and an abortion, and that the alleged constitutional deprivations take on immediacy and reality. However, aside from an allegation that women are compelled, under the present law, to subject their bodies to the possible dangers of oral and other contraceptives prior to pregnancy, plaintiffs have not shown a specific invasion of individual rights or threat of harm which arises prior to the occurrence of pregnancy. Nor do they allege that any of them is pregnant with an unwanted child or is seeking an abortion. Plaintiffs do allege that some of them have already been forced to choose between these two alternatives. But no plaintiff has shown that she is presently confronted with this problem.
While there may be a class of New Jersey women presently threatened as described by plaintiff-women, their contention that they are members thereof is unsupported by their complaint, as amended, their brief, or oral argument. We must conclude that the constitutional infirmities and deprivations alleged to flow from the statute are of a hypothetical and abstract nature as to these plaintiffs.
This conclusion is amply supported by prior adjudications involving the question of standing. In Flast v. Cohen,
upon which plaintiffs rely, the Court held that federal taxpayers possessed standing to litigate the constitutionality of allocations of federal funds to finance instruction in sectarian schools. The Court held that the plaintiff-taxpayers had shown an important personal stake in the outcome of the litigation, in the form of an immediate threat to their constitutional rights. It observed that the utilization of federal tax monies for such a purpose might well violate plaintiff-taxpayers' and all citizens' constitutional rights to be free of governmental establishment of religion. Thus a logical nexus existed between the violations alleged and the harm threatened to the plaintiffs in their status as federal taxpayers. In the present case we cannot find such a link between the alleged violations and the harm threatened to plaintiffs as women.
In Barrows v. Jackson,
money damages were sought against petitioner, a Caucasian, for breach of a racially restrictive covenant. Her claim of standing to litigate alleged violations of the constitutional rights of black citizens by state judicial enforcement of the covenant was upheld by the Court. It found, in addition to the threat of a substantial pecuniary loss, which was sufficient to confer standing, that "it would be difficult if not impossible for the persons whose rights are asserted to present their grievance before any court".
In the present case, as discussed above, plaintiff-physicians in Y.W.C.A. have standing to assert deprivations of the constitutional rights of their women patients. In fact, the complaint in Y.W.C.A. alleges most of the deprivations of the constitutional rights of women asserted by plaintiffs in Abramowitz. Hence, we are not faced with a factual situation in which it would be difficult, if not impossible, for the constitutional violations alleged to be adjudicated without a grant of standing to plaintiff-women. This is not one of the "unique situations" in which considerations of "broad constitutional policy" indicate a relaxation of the standing requirement.
The circumstances of the present Abramowitz case, on the contrary, are more closely analogous to the facts involved in Zwickler v. Koota
and successive litigation in Golden v. Zwickler.
In the first case, the petitioner had been convicted of distributing anonymous political handbills inveighing against a congressman in violation of a New York State law, and sought a declaratory judgment that the statute was unconstitutional, stating his intention to distribute more handbills opposing him in the next election. A three-judge court abstained from determining whether the petitioner was entitled to a declaratory judgment. The Supreme Court reversed and remanded. Zwickler v. Koota, supra. Meanwhile, the congressman against whom petitioner's handbills were to be directed had left the Congress for a place on the Supreme Court of New York, which carried a term of fourteen years. The District Court held on remand that the lack of immediate threat to the petitioner of enforcement of the statute would not prevent it from issuing a declaratory judgment, and held the statute unconstitutional. On an appeal from this decision, the Court, in Golden v. Zwickler, supra, again reversed, holding that petitioner had not presented his constitutional question "in the context of a specific live grievance"
and that a hypothetical threat to his rights was insufficient to support a declaratory judgment.
This reasoning is equally applicable to the situation of plaintiffs in Abramowitz. They do not possess standing to assert the claims of the class they purport to represent since no immediate threat exists which would indicate the presence of a case or controversy as to them before this court. Moreover, this reasoning is likewise applicable to women plaintiffs in Y.W.C.A. The contentions of plaintiffs in Abramowitz and of those in Y.W.C.A., as individual women and on behalf of the organizations they claim to represent amount to no more than allegations that they "feel inhibited"
by the operation of the abortion statute. Finding no distinction between them and absent a showing of a live controversy or immediate threat of injury, so much of the complaint as pertains to the allegations of the women-plaintiffs in Y.W.C.A., individually, and allegedly on behalf of the Young Women's Christian Association of Princeton, New Jersey, and the New Jersey Branch of the Women's International League for Peace and Freedom
will be dismissed for lack of standing. On the same ground the complaint in Abramowitz must fall.
There remain the issues raised in the Y.W.C.A. complaint against the defendant Attorney General by the physician-plaintiffs for themselves, and on behalf of their women patients, to which the following discussion is addressed.
The Attorney General next urges that this court should abstain from entertaining plaintiffs' requests for declaratory and injunctive relief. In Zwickler v. Koota,
the Supreme Court expressed the broad general principle that Congress:
"imposed the duty upon all levels of the federal judiciary to give due respect to a suitor's choice of a federal forum for the hearing and decision of his federal constitutional claims. Plainly, escape from that duty is not permissible merely because state courts also have the solemn responsibility, equally with the federal courts, '. . . to guard, enforce, and protect every right granted or secured by the Constitution . . . '"
Under the rule of Zwickler it has been held that a federal court may avoid its duty to accept federal constitutional claims only in "narrowly limited 'special circumstances.'"
One of these special circumstances is:
"when a decision concerning a question of state law is necessary to a disposition of the case, and the answer to the state question involves unclear state law or a matter of paramount interest to the state."
Foremost, however, is "the susceptibility of a state statute of a construction by the state courts that would avoid or modify the constitutional question."
The Attorney General contends that the present case falls within this exception and relies on Reetz v. Bozanich,
and Rogers v. Danforth.
They are, however, clearly distinguishable from the present case. In Reetz, the Supreme Court held that a federal district court had erred in refusing to abstain from issuing a declaratory judgment where Alaska statutes regulating salmon licensing and attacked by plaintiffs had not yet been the subject of any adjudication in the state's courts. In Rogers, a federal district court abstained from hearing a challenge to Missouri's abortion statute on the grounds that the state court had not yet authoritatively construed the statute. In both cases, it was felt that state court adjudications might have avoided or resolved the issues raised in the federal district court. In the present case, on the contrary, the statute in question has been the subject of state judicial scrutiny, and the constitutional issues raised here have not been avoided or resolved by adjudication in the state courts. The Supreme Court of New Jersey has held the abortion statute susceptible of constitutional construction,
and it is in light of the New Jersey state adjudications that constitutional infirmities are alleged still to exist. The entertainment of this case, therefore, would not precipitate a premature federal disposition of constitutional questions which might be avoided or resolved in a state adjudication if this court abstained. Nor do the constitutional issues raised here involve any questions of unclear state law or an issue of paramount interest to the state, which should be resolved first in a state court. Thus, the "special circumstances" which demand abstention are lacking in the present case.
Although this conclusion would normally terminate our inquiry, the abstention question must be further examined in light of the issues raised by the Supreme Court in a group of six related cases, decided after the hearing in this case, which restricted the situations in which declaratory and injunctive relief against pending proceedings under a state criminal statute may be granted by a federal district court.
Younger v. Harris
was an appeal from the decision of a three-judge court of the Central District of California enjoining a prosecution pending under a state criminal statute, and, as "other and further relief," declaring the statute unconstitutional. This decision was reversed by the Supreme Court, which limited the grounds justifying federal injunctive relief to the "special circumstances" where a threat of great and immediate irreparable injury is shown.
More important to the prayer for declaratory relief in the present case, however, was the Court's overturning of the declaratory judgment in Younger on the basis of its holding in Samuels v. Mackell:
"in cases where the state criminal prosecution was begun prior to the federal suit, the same equitable principles relevant to the propriety of an injunction must be taken into consideration by federal district courts in determining whether to issue a declaratory judgment, and . . . where an injunction would be impermissible under these principles, declaratory relief should ordinarily be denied as well."
It is clear that Younger and Samuels indicate a modification of the rule governing declaratory judgments stated in Zwickler v. Koota, supra, in cases where a prosecution under a state criminal statute is pending, and now restrict the criteria for federal declaratory relief to those justifying federal injunctive relief -- that is, a threat of great and immediate irreparable damage.
The question left open by the Court is whether these principles should be applied to a case like the present, where no state criminal proceeding was pending when the declaratory judgment and the injunction against enforcement of the statute were sought.
Examining the rationale underlying these decisions, it appears that the Court was strongly influenced by the disruptive effects of federal interference with pending state prosecutions. Federal intervention in such cases, which for all practical purposes results in parallel litigation of the same case in the two court systems, may seriously interrupt the smooth and efficient operation of both judicial systems. It will almost always interfere at least with state court proceedings since a federal district court can effectuate its declaratory judgments by enjoining the state proceedings. The effect of a declaratory judgment in these circumstances becomes virtually the same as that of an injunction, for either type of relief ultimately compels a halt in a state prosecution. Such a consequence in itself constitutes a severe blow to the delicate balance between the federal and state judicial systems and the principles of comity which enforce and protect it. Moreover, federal judicial interference in on-going state prosecutions may involve violations of the Federal Anti-Injunction statute,
in which the prohibition against federal judicial intervention in pending state proceedings has always been held to embody a basic principle in the separation of the state and federal judicial systems.
Upon a consideration of Younger and its related cases, however, we are not persuaded that the reasoning and fundamental policies voiced therein are applicable to the petition for declaratory judgment in the instant case, where no state prosecution was pending against the plaintiffs at the time federal relief was sought. Here, the consideration of a request for declaratory judgment does not constitute an adjudication of the plaintiffs' claims simultaneously in two judicial forums, and therefore does not involve the certain disruption of an ongoing state proceeding with which the Supreme Court was concerned in Younger and the related cases. Thus, the entertainment of a petition for declaratory judgment in the circumstances of the present case is not analogous to injunctive relief and we are not persuaded that it must be governed by the limited "special circumstances" which justify the issuance of an injunction. Hence, we conclude that it is appropriate here to consider the plaintiffs' petition for declaratory relief.
Plaintiffs' request for injunctive relief, however, raises an abstention question of a different dimension. A line of decisions, of which Younger is but a recent example, reflect the established judicial principle that injunctions issued against pending or threatened prosecution under state criminal statutes severely threaten the integrity of orderly state judicial process, and the balance of the federal and state judicial systems. Hence, injunctive relief has long been an extraordinary judicial measure appropriate only in "special circumstances."
In order to obtain injunctive relief a petitioner must show more than the threat of injury which is "incidental to every criminal proceeding brought lawfully and in good faith . . . "
Rather, he must show a threat of great and immediate irreparable injury.
In Dombrowski v. Pfister,
irreparable injury to the petitioners was established where state officials had utilized a statute in bad faith and for the purpose of harassment. The court found full support for the allegations that:
"the threats to enforce the statutes against appellants are not made with any expectation of securing valid convictions, but rather are part of a plan to employ arrests, seizures, and threats of prosecution under color of the statutes to harass appellants and discourage them and their supporters from asserting and attempting to vindicate the constitutional rights of Negro citizens of Louisiana."
Finding that these threatened actions exerted a severe "chilling effect" upon the petitioners in the exercise of their First Amendment freedoms, and that "defense of the State's criminal prosecution [would] not assure adequate vindication of [petitioners'] constitutional rights,"
the Court granted an injunction.
Subsequently, in Cameron v. Johnson,
the Court affirmed the refusal of a federal district court to issue an injunction against enforcement of a state statute regulating picketing on the grounds that the statute was not vague and overbroad, and was not being utilized by the state in bad faith to discourage civil rights activities. It also stated that any chilling effect on picketing as a form of freedom of expression that might result from a good-faith enforcement of the statute was insufficient to justify injunctive relief. This reasoning was affirmed in Younger, in which the Court rejected the notion that "the federal courts may give equitable relief, without regard to any showing of bad faith or harassment, whenever a state statute is found 'on its face' to be vague or overly broad in violation of the First Amendment."
Other courts facing challenges to state abortion laws have adjudicated requests for injunctions in accordance with these principles. In Babbitz v. McCann,
a federal district court held that Wisconsin's abortion statute violated the plaintiff's Ninth Amendment rights, but refused to issue an injunction against the stricken statute, stating that there was no showing of exceptional circumstances sufficient to warrant an injunction, and no reason to doubt that the state would fail to vindicate plaintiff's constitutional rights. Only when it became apparent that the state had refused to cease prosecutions under the statute did the district court issue an injunction against its exercise.
In Roe v. Wade,
a federal district court held that an abortion statute of Texas violated the plaintiffs' Ninth Amendment rights, but refused to issue an injunction because it could not find that the statute was enforced in order to discourage protected activities, or to abridge freedom of expression.
Applying these principles to the present case, it is clear that plaintiffs have neither alleged nor shown utilization of the New Jersey abortion statute by state prosecutors for any reason other than in good faith and for the purpose of securing valid convictions thereunder. They have made no allegation that the abortion statute has been used against them in bad faith as an instrument of intimidation or harassment in the exercise of their protected constitutional rights. The allegation that they are chilled in the exercise of First Amendment freedoms is insufficient in itself to support injunctive relief. Moreover, no reasons have been advanced to indicate that state prosecutors will fail to enforce or protect plaintiffs' constitutional rights as found by this court. Nor are we otherwise led to believe that they will under such circumstance ignore them. Hence, the special circumstances which justify the drastic relief of an injunction have not been shown.
Plaintiffs contend that the statutory provisions of 2A:87-1
are unconstitutionally vague, facially and as applied, because they provide insufficient warning to plaintiffs and others of the conditions which justify abortion, and are unevenly applied. 2A:87-1 provides as pertinent hereto:
"Any person who, maliciously or without lawful justification, with intent to cause or procure the miscarriage of a pregnant woman, administers or prescribes or advises or directs her to take or swallow any poison, drug, medicine or noxious thing, or uses any instrument or means whatever, is guilty of a high misdemeanor." (Emphasis supplied.)
Plaintiffs specifically challenge the phrase "without lawful justification" as providing inadequate notice of the sphere of conduct prohibited by the statute.
It is basic to due process that:
"no one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. (footnote omitted) '. . . a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.'"
Nowhere in 2A:87-1 or any legislative history, however, is there a hint of what reasons may constitute "lawful justification" for the termination of pregnancy. "Lawful" is defined in Black's Law Dictionary as: "Legal; warranted or authorized by the law; having the qualifications prescribed by law; not contrary to nor forbidden by the law." "Justification" is defined as "maintaining or showing a sufficient reason in court why the defendant did what he is called upon to answer . . .. Just cause or excuse . . .. Just, lawful excuse for act . . .. Reasonable excuse." These definitions do not clarify the statute. Nor do the defendants urge that the language of the statute itself fulfills the specificity requirement of the Fourteenth Amendment to give reasonable notice of the scope of permissible or prohibited activity. They argue rather that the challenged language, which has remained virtually unaltered since the passage of the statute in 1849, was intentionally retained to provide for continuing judicial interpretation in the light of prevailing conditions and that the New Jersey courts have interpreted the statute so as to eliminate potential vagueness in its scope. Defendants rely additionally upon guidelines formulated by a Committee of County Prosecutors and issued by the Office of the Attorney General in 1967 construing the scope of the phrase "without lawful justification." All County Prosecutors in New Jersey, save for one,
agreed to be bound thereby.
Finally, defendants urge that the present case does not involve a statute which restricts freedom of expression, and is not deserving of the strict judicial scrutiny called for where a chilling effect on First Amendment freedoms may exist.
At the outset, we must reject this last contention. First Amendment freedoms of speech and expression are clearly involved in the present case since the very language of the statute imposes a prohibition on any person who "prescribes or advises or directs" a woman to terminate her pregnancy. New Jersey courts have in fact upheld convictions of individuals under the statute who imparted information concerning the procurement of abortions.
We are not persuaded by the contention that the sweeping language of the statute can be upheld as an expression of legislative intent to place interpretations of the phrase "without lawful justification" in the courts. While the legislature may validly leave the task of determining the scope and contours of broadly worded statutes to the judiciary, which is bound to uphold its constitutionality if at all possible, this is hardly susceptible of accomplishment when the intent or purpose of the statute is left obscure.
It is patent, indeed, that the New Jersey Legislature has left undetermined whether the statute was intended as a health and safety measure for the protection of women, as a protection for the lives of unborn children, or both.
We turn now to the decisions of the New Jersey courts to determine whether, as defendants urge, there have been judicial interpretations construing the statute to sufficiently forewarn the plaintiffs of the sphere of activity prohibited by its language. The first New Jersey case involving judicial comment on the phrase "without lawful justification" was State v. Brandenburg.
Following his conviction under the statute in that case, the defendant-physician on appeal challenged inter alia a charge to the jury at trial that:
"'Lawful justification is used in the sense of necessity. It is a defense that the destruction of the child's life was necessary to save that of the mother, but it should be remembered that necessity of this class must be strictly limited. The right can only be exercised in extremity.'"
The appellant argued that the trial court should have charged that protection of a woman's health and well-being constitute lawful justification under the statute. The appellate court held that there was no error in the charge, particularly since the defense at trial had been that the abortion was necessary to save the mother's life. It declined to consider whether the protection of the mother's health constituted lawful justification, but did reject the proposition that "so broad a ground as 'well-being' may be considered by a jury as ground for causing a miscarriage."
Judicial consideration of the inclusive sweep of the challenged statutory language occurred again in Gleitman v. Cosgrove.
Although this was a malpractice action against two physicians who allegedly failed to apprise the mother that birth defects might result from rubella, it became a vehicle for the expression of considerably diverse judicial opinion on what reasons "lawfully" justify abortion. The New Jersey Supreme Court refused to reach the question of whether an abortion, if sought, would have been illegal, but went on to state that:
"The only justification so far held lawful by our courts is preservation of the mother's life. State v. Shapiro, 89 N.J.L. 319, 98 A. 437 (E & A 1916); State v. Brandenburg, 137 N.J.L. 124, 58 A. 2d 709 (Sup. Ct. 1948). It may well be that when a physician performs an abortion because of a good faith determination in accordance with accepted medical standards that an abortion is medically indicated, the physician has acted with lawful justification within the meaning of our statute and has not committed a crime."
Notwithstanding the court's express refusal to consider whether an abortion, if sought, would have been lawfully justified, the significance of the language cannot be ignored. For it not only approved the ground of necessity to preserve the mother's life as a lawful justification for abortion, but also clearly implied that medical indications as well might justify it. Such judicial expression, whether a holding or merely dicta, surely did not serve to illuminate the reasons which constitute lawful justification under the statute, either in performing abortions or imparting knowledge thereof. Chief Justice Weintraub, commenting on the above-quoted statement, observed that:
"the very suggestion that a question remains as to whether a eugenic abortion is criminal will be quite as forbidding as a flat holding that it is."
At the very least, the language of the court in Gleitman implied an opportunity for physicians to utilize their medical judgment in granting abortions, but left wide open the possibility that they could be second-guessed in a judicial forum, to incur the severe penalties of conviction and loss of license.
In the same year that Gleitman was decided, guidelines were formulated by the County Prosecutors, interpreting the statutory phrase "without lawful justification" as heretofore noted.
They virtually adopted the language of the court in Gleitman, stating that abortions would be considered lawfully justified when necessary to preserve the mother's life, or when performed on a good faith determination made in accordance with accepted medical standards that a termination of pregnancy was medically indicated. It is apparent that the Prosecutors relied on the language of the Gleitman case as a determinative interpretation of the statute.
Neither the statement of the court in Gleitman nor the County Prosecutors' guidelines were further clarified in the New Jersey Supreme Court's recent consideration of State v. Moretti.
On that appeal from a conviction of conspiracy to commit an unlawful abortion, the court replied to the appellants' contention that the statute was unconstitutionally vague by stating that:
"Clearly, a construction of the statute which confined the meaning of the phrase 'lawful justification' to the preservation of the mother's life would avoid any constitutional attack based on vagueness."
It also stated that:
"it is beyond comprehension that the defendants could have believed that our abortion statute envisioned lawful justification to exist whenever a woman wanted to avoid having a child."
The court did not in any way allude to its language in Gleitman, adopted by the Prosecutors of New Jersey, that an abortion may be lawfully justified if medically indicated on the basis of a good faith determination made in accordance with accepted medical standards. Whether the court intended thereby to affirm or reject its earlier language is unclear. Yet the Prosecutors have given no indication of their withdrawal from their position in the 1967 report, despite the more restrictive language in Moretti. In fact, several justices of the New Jersey Supreme Court have voiced widely differing opinions regarding the scope of reasons which would lawfully justify abortion under the statute. Justice Francis, concurring in Gleitman, argued that necessity to preserve the mother's life is the only lawful justification under the statute, while Chief Justice Weintraub (dissenting in part) and Justice Jacobs (dissenting) stated their belief that rubella provides a lawful justification for the termination of pregnancy. Justice Jacobs additionally noted that termination of pregnancy to preserve the mother's life or health should be considered lawful justification in his observation that:
"it is well-known that abortions have been and are being performed in good faith by highly qualified physicians in highly reputable hospitals, when necessary to preserve the life or health of the mother, or to preclude the quickening of the fetus in rubella cases and the like." (Emphasis supplied.)
On the basis of the foregoing discussion it is clear that the defendant has accurately argued that abortion is lawfully justified at least when necessary to preserve the mother's life; that it "may well be" justified when performed on a good faith determination that accepted medical standards so indicate; and that most New Jersey prosecutors appear to be operating under the assumption that both reasons constitute lawful justification for abortion. This is a frail foundation, however, for the defendant's contention that the statute has thereby been rendered sufficiently specific to conform to the stringent requirements of the Fourteenth Amendment for adequate and reasonable notice of the sphere of activity prohibited by it. All of these arguments serve only to emphasize the absence of judicial interpretation establishing a clear standard by which individuals and prosecutors alike may reasonably determine the lawfulness of conduct under the statute. We are not persuaded that the decisions of the New Jersey courts have provided constitutionally adequate forewarning of the sphere of activity prohibited by the statute as being "without lawful justification." We cannot find proper notice in the language of the statute or in any legislative expression of intent or purpose. Nor can a mere statement of policy issued by the state prosecutors provide the necessary specificity.
The New Jersey statute is unlike that of the District of Columbia which was upheld by the Supreme Court on a challenge of vagueness in United States v. Vuitch.
The Court there held constitutional a statute prohibiting abortion unless "necessary for the preservation of the mother's life or health," finding that the words "life or health" were sufficiently specific to fulfill the notice requirements of the Fourteenth Amendment. The New Jersey statute is not similar to that statute, either in language or as interpreted by the state courts.
In the absence of judicial interpretation and legislative history or directives providing adequate guidelines for the conduct of those who may be threatened with possible prosecution under 2A:87-1, it cannot be constitutionally sustained. The challenged phrase "without lawful justification" provides not a glimmer of notice to the reader of what he may and may not do.
In the final analysis, plaintiff-physicians who may be threatened with prosecution under the abortion statute can rely only upon their individual judgment, always subject to a judicial determination that they guessed wrongly, and to resulting conviction and loss of license to practice medicine.74a As Justice Clark has observed:
"The increasing number of abortions subjects physicians to increased dangers of liability for incorrectly interpreting a statute. It appears that doctors face an uncertain fate when performing an abortion."
We conclude that the New Jersey abortion statute, 2A:87-1, is unconstitutionally vague on its face and as applied; that it chills and deters the plaintiff-physicians in the exercise of protected First Amendment activities; and that it violates plaintiff-physicians' rights under the Fourteenth Amendment to freely practice the profession of their choice.
V. RIGHT OF PRIVACY
Plaintiff-physicians further contend that the New Jersey abortion statutes, 2A:87-1 and 45:9-16, violate their and their patients' rights of privacy in the physician-patient relationship as guaranteed by the First, Fourth, Fifth, Ninth and Fourteenth Amendments. They urge that a statutory command to withhold medical advice or services to women seeking abortions intrudes unconstitutionally upon an alleged right of women to privacy in determining whether to bear a child, which includes a right "not to have children in the cases where pregnancy can be terminated in its early stages by means of an induced or therapeutic abortion."
It is argued that this right of privacy extends to the quickening period, including at least the first trimester of pregnancy. If women patients are entitled to seek the services of physicians to perform abortions, it follows that the rendition of such services is beyond the reach of the abortion law.
The right of privacy alleged here is grounded upon the fundamental principle that the Constitution protects the right of an individual to control the use and function of his or her body without unreasonable interference from the state. Plaintiffs do not rely on the literal language of any constitutional provision to support their allegations. Rather, they contend that a number of Supreme Court decisions, considered together, have interpreted the Ninth and Fourteenth Amendments,
either singly or in combination, to encompass the right of privacy asserted here.
A foundation for this principle may be observed in Union Pacific Railway Co. v. Botsford,
in which the Court stated:
"No right is held more sacred, or is more carefully guarded, by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of law."
The continuing validity of this principle was demonstrated only four years ago in Terry v. Ohio,
wherein the Supreme Court specifically reaffirmed the above-quoted passage from Botsford.80
Since that time, the Supreme Court has expanded the Botsford principle, interpreting the Ninth and Fourteenth Amendments as having established that the Constitution protects certain rights relating to marriage, sex, childbearing, childrearing and education, despite the fact that such rights are not mentioned either in its body or in any of its Amendments.
The first of this line of cases is Meyer v. Nebraska.
In Meyer, the Court struck down, on Fourteenth Amendment grounds, a state statute which sought to support the primacy of the English language by prohibiting the teaching of modern foreign languages to school children below the eighth grade. In discussing the applicability of the Fourteenth Amendment to the issue before it, the Court commented:
"The problem for our determination is whether the statute as construed and applied unreasonably infringes the liberty guaranteed to the plaintiff in error by the Fourteenth Amendment. 'No State shall . . . deprive any person of life, liberty, or property, without due process of law.'
"While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right . . . to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men. [citations omitted] The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect . . .."
Two years later, in Pierce v. Society of Sisters,
the Supreme Court, citing its decision in Meyer, supra, read the Fourteenth Amendment as guaranteeing the "liberty of parents and guardians to direct the upbringing and education of children under their control"
and vindicated the right of private school attendance despite a state law requiring that students be educated in public schools. In Skinner v. Oklahoma ex rel. Williamson,
which involved a challenge to an Oklahoma law requiring compulsory sexual sterilization for habitual criminal offenders, a unanimous Court voided the statute for violating the Equal Protection Clause of the Fourteenth Amendment. In so doing, however, the Court addressed itself directly to a "right which is basic to the perpetuation of a race -- the right to have offspring."
More recently, in Loving v. Virginia,
the Court noted that "the freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men," and held that a state anti-miscegenation law violated the Due Process Clause of the Fourteenth Amendment by unreasonably interfering with marriage, "one of the 'basic civil rights of man,' fundamental to our very existence and survival."
The existence of a right of privacy received significant support in Griswold v. Connecticut.
That case resulted from a Connecticut statute which made it a criminal offense for any person either to use or to aid or abet in the use of any drug, medicinal article or instrument for the purpose of preventing conception. The appellants in Griswold, respectively the Executive Director and the Medical Director, a physician, of the Planned Parenthood League of Connecticut, provided advice, information and devices to married couples for contraceptive purposes. Their convictions for engaging in the prohibited activities as accessories were upheld by the Connecticut courts. The Supreme Court held the Connecticut statutes unconstitutional as an unreasonable interference with the right of marital privacy. Justice Douglas, for the majority, recognized that the right of marital privacy upon which he rested his opinion is not stated specifically in the Constitution and explained his reasoning in the following language:
"The foregoing cases suggest that specific guarantees in the Bill of Rights have penumbras, formed by emanations from those guarantees that help give them life and substance. See Poe v. Ullman, 367 U.S. 497, 516-522 [81 S. Ct. 1752, 6 L. Ed. 2d 989] (dissenting opinion). Various guarantees create zones of privacy. The right of association contained in the penumbra of the First Amendment is one, as we have seen. The Third Amendment in its prohibition against the quartering of soldiers 'in any house' in time of peace without the consent of the owner is another facet of that privacy. The Fourth Amendment explicitly affirms the 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' The Fifth Amendment in its Self-Incrimination Clause enables the citizen to create a zone of privacy which government may not force him to surrender to his detriment. The Ninth Amendment provides: 'The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'
* * *
"We have had many controversies over these penumbral rights of 'privacy and repose.' See, e.g., Breard v. Alexandria, 341 U.S. 622, 626, 644 [71 S. Ct. 920, 923, 933, 95 L. Ed. 1233]; Public Utilities Comm'n v. Pollak, 343 U.S. 451 [72 S. Ct. 813, 96 L. Ed. 1068]; Monroe v. Pape, 365 U.S. 167 [81 S. Ct. 473, 5 L. Ed. 2d 492]; Lanza v. New York, 370 U.S. 139 [82 S. Ct. 1218, 8 L. Ed. 2d 384]; Frank v. Maryland, 359 U.S. 360 [79 S. Ct. 804, 3 L. Ed. 2d 877]; Skinner v. Oklahoma, 316 U.S. 535, 541 [62 S. Ct. 1110, 1113, 86 L. Ed. 1655]. These cases bear witness that the right of privacy which presses for recognition here is a legitimate one.
"The present case, then, concerns a relationship lying within the zone of privacy created by several fundamental constitutional guarantees."
Notable is the critical significance of Justice Douglas' citation of the Ninth Amendment in his listing of constitutional provisions which mark out rights or zones of privacy through their penumbras and emanations.
The concurring opinion of Justice Goldberg
sought to explore and elucidate the right of privacy emanating from the Ninth Amendment. As a starting point in his analysis, Justice Goldberg stated:
"This Court, in a series of decisions, has held that the Fourteenth Amendment absorbs and applies to the States those specifics of the first eight amendments which express fundamental personal rights. [footnote omitted] The language and history of the Ninth Amendment reveal that the Framers of the Constitution believed that there are additional fundamental rights, protected from governmental infringement, which exist alongside those fundamental rights specifically mentioned in the first eight constitutional amendments."
He then proceeded to determine whether the Ninth Amendment was properly invoked in considering the question of a right of privacy, reasoning that:
"While this Court has had little occasion to interpret the Ninth Amendment, [footnote omitted], '[it] cannot be presumed that any clause in the constitution is intended to be without effect.' Marbury v. Madison, 5 U.S. (1 Cranch) 137, 174 [2 L. Ed. 60]. In interpreting the Constitution, 'real effect should be given to all the words it uses.' Myers v. United States, 272 U.S. 52, 151 [47 S. Ct. 21, 31, 71 L. Ed. 160]. The Ninth Amendment to the Constitution may be regarded by some as a recent discovery and may be forgotten by others, but since 1791 it has been a basic part of the Constitution which we are sworn to uphold. To hold that a right so basic and fundamental and so deep-rooted in our society as the right of privacy in marriage may be infringed because that right is not guaranteed in so many words by the first eight amendments to the Constitution is to ignore the Ninth Amendment and to give it no effect whatsoever. Moreover, a judicial construction that this fundamental right is not protected by the Constitution because it is not mentioned in explicit terms by one of the first eight amendments or elsewhere in the Constitution would violate the Ninth Amendment, which specifically states that '[the] enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.'" (Emphasis in original)
In determining which rights are protected against unreasonable state intervention and interference by the Ninth Amendment, Justice Goldberg stated:
"In determining which rights are fundamental, judges are not left at large to decide cases in light of their personal and private notions. Rather, they must look to the 'traditions and [collective] conscience of our people' to determine whether a principle is 'so rooted [there] . . . as to be ranked as fundamental.' Snyder v. Massachusetts, 291 U.S. 97, 105 [54 S. Ct. 330, 332, 78 L. Ed. 674]. The inquiry is whether a right involved 'is of such a character that it cannot be denied without violating those "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions." . . .' Powell v. Alabama, 287 U.S. 45, 67 [53 S. Ct. 55, 77 L. Ed. 158]."
The late Justice Harlan concurred in the Griswold decision but not in the opinion of the Court. He stated:
"In my view, the proper constitutional inquiry in this case is whether this Connecticut statute infringes the Due Process Clause of the Fourteenth Amendment because the enactment violates basic values 'implicit in the concept of ordered liberty,' Palko v. Connecticut, 302 U.S. 319, 325 [58 S. Ct. 149, 152, 82 L. Ed. 288]. For reasons stated at length in my dissenting opinion in Poe v. Ullman, supra [367 U.S. 497, 539-555, 81 S. Ct. 1752, 6 L. Ed. 2d 989 (1961)], I believe that it does. While the relevant inquiry may be aided by resort to one or more of the provisions of the Bill of Rights, it is not dependent on them or any of their radiations. The Due Process Clause of the Fourteenth Amendment stands, in my opinion, on its own bottom."
According to Justice Harlan, Fourteenth Amendment analysis proceeds as follows:
"Each new claim to Constitutional protection must be considered against a background of Constitutional purposes, as they have been rationally perceived and historically developed. Though we exercise limited and sharply restrained judgment, yet there is no 'mechanical yardstick,' no 'mechanical answer.' The decision of an apparently novel claim must depend on grounds which follow closely on well-accepted principles and criteria. The new decision must take 'its place in relation to what went before and further [cut] a channel for what is to come.' Irvine v. California, 347 U.S. 128, 147 [74 S. Ct. 381, 391, 98 L. Ed. 561] (dissenting opinion)."
Hence Griswold and its associated cases establish the following basic principles applicable to the issues presented here:
1. Not all fundamental rights guaranteed by the United States Constitution are mentioned specifically either in its body or in its amendments;
2. A general right of privacy, or a collection of particular zones of privacy, exists in the Constitution, whether derived from the penumbras and emanations of various constitutional provisions or amendments, the Ninth Amendment, the Due Process Clause of the Fourteenth Amendment or a combination thereof;
3. In determining which activities deserve constitutional protection, only those that can be termed "fundamental" or "implicit in the concept of ordered liberty" are subsumed under a right or zone of privacy;
4. The constitutional right or zone of privacy has been held to include and protect at least certain activities relating to marriage, sex, contraception, procreation, child-rearing and education; and
5. Even if an activity is sufficiently basic to be included within a right of privacy, it is not entitled to freedom from all regulation and control by government.
Applying these principles to the circumstances of the present case, the absence of specific language in the Constitution does not dilute or diminish the contention that there is a right of privacy which includes the right to seek an abortion in the early stages of pregnancy. The scope of interests found to be constitutionally protected by the Supreme Court demonstrates that it views both the sanctity of the individual's person and his relationships within a family as so vital to our free society that they should be ranked as fundamental, or implicit in the concept of ordered liberty. Supreme Court decisions heretofore examined have determined that the individual's person and his freedom to marry, to enjoy privacy in a marriage, to have offspring, to decide not to have offspring by practicing contraception, and to control and direct the education of children, are protected from unreasonable governmental interference.
In the wake of Griswold there have been a number of lower court decisions directed to the merits of the right of privacy contentions which have expanded the scope of those protected activities to include a woman's right to choose whether to complete a pregnancy and bear a child.
In California v. Belous,
the court stated:
"The fundamental right of the woman to choose whether to bear children follows from the Supreme Court's and this court's repeated acknowledgement of a 'right of privacy' or 'liberty' in matters related to marriage, family, and sex. [citing Griswold, Loving, Skinner, Pierce, Meyer, and two California cases] That such a right is not enumerated in either the United States or California Constitutions is no impediment to the existence of the right. [citations omitted]."
The court in Babbitz v. McCann,
found the Ninth Amendment of the Constitution protects a "woman's inherently personal right" to obtain an abortion after analyzing a host of authority, including Belous, Botsford, Griswold, Loving, Meyer, Pierce and Skinner.
In Roe v. Wade,
the court struck down the Texas abortion statute as infringing upon "plaintiffs' fundamental right to choose whether to have children," citing Babbitz, Belous, Griswold, all supra, and State v. Munson.
In Doe v. Scott,
the court reviewed the authorities discussed above and concluded:
"We cannot distinguish the interests asserted by the plaintiffs in this case from those asserted in Griswold. . . We believe that Griswold and related cases establish that matters pertaining to procreation, as well as to marriage, the family, and sex are surrounded by a zone of privacy which protects activities concerning such matters from unjustified governmental intrusion."
Accordingly, we are persuaded that the freedom to determine whether to bear a child and to terminate a pregnancy in its early stages is so significantly related to the fundamental individual and family rights already found to exist in the Constitution that it follows directly in their channel and requires recognition.
Whether a constitutional right of privacy in this area is conceptualized as a family right, as in Griswold, as a personal and individual right, or as deriving from both sources is of no significance and applies equally to all women regardless of marital status, for the restriction on abortion by the New Jersey statutes immediately involves and interferes with the protected areas of both family and individual freedom.
Hence, we hold that a woman has a constitutional right of privacy cognizable under the Ninth and Fourteenth Amendments to determine for herself whether to bear a child or to terminate a pregnancy in its early stages, free from unreasonable interference by the State.
There remains a question of the extent of authority of the state to regulate in this area. While it has long been recognized that constitutional rights are not immune from all governmental regulation,
it is insufficient for the state to demonstrate that a restrictive regulatory scheme is motivated merely by some rational purpose. State intrusions into an area of constitutionally protected freedom must be founded on a compelling state interest which overrides the private rights of the individual.
Here, as in California v. Belous:
"The critical issue is not whether such rights exist, but whether the state has a compelling interest in the regulation of a subject which is within the police powers of the state . . .."
Where such an interest exists, state regulation must be narrowly drawn, and reasonably designed to fulfill its purpose without encroaching unnecessarily upon personal liberty. As was said in N.A.A.C.P. v. Alabama:
"a governmental purpose to control or prevent activities constitutionally subject to state regulation may not be achieved by means which sweep unnecessarily broadly and thereby invade the area of protected freedoms. [citation omitted] '. . . [The] power to regulate must be so exercised as not, in attaining a permissible end, unduly to infringe the protected freedom.' Cantwell v. Connecticut, 310 U.S. 296, 304, 60 S. Ct. 900, 84 L. Ed. 1213. '. . . [Even] though the governmental purpose be legitimate and substantial, that purpose cannot be pursued by means that broadly stifle fundamental personal liberties when the end can be more narrowly achieved.' Shelton v. Tucker, 364 U.S. 479, 488 [81 S. Ct. 247, 252, 5 L. Ed. 2d 231]."
The Attorney General and amici, supported by briefs and oral argument, defend the statutory restrictions provided in the New Jersey abortion laws on two grounds of purported state interest: the power of the State to regulate conduct inimical to the general welfare, and the concept of the protection of the embryo or fetus. Inevitably there are drawn into issue other areas of conceivable state interest, such as guarding the health and safety of women, the control of sexual behavior, and the promotion of increased population.
There is no question that the State has a rational and compelling interest in safeguarding the health, safety, and lives of its citizens.
Concerning the relatively abstract interest of the State as expressed by the Attorney General in regulating conduct inimical to the general welfare, no authority has been advanced nor any found indicating that a state may sustain legislation alleged to infringe on individual constitutional rights for so amorphous a reason as fostering the general welfare of its citizens. It is clear that the State must show some particular and specific interest which is compelling.
Legislative concern for the lives and health of women was a motivation in the passage of the 1849 abortion statute, which has been altered but little to date. In State v. Cooper
the court held that:
"the procuring of an abortion by the mother, or by another with her assent, unless the mother be quick with child, is not an indictable offence at the common law, and consequently . . . the mere attempt to commit the act is not indictable."
Following hard upon this decision, New Jersey passed the abortion statute.
In State v. Murphy,
the first case to interpret the 1849 statute, the court stated:
"The design of the statute was not to prevent the procuring of abortions, so much as to guard the health and life of the mother against the consequences of such attempts.
* * *
"The offence of third persons, under the statute, is mainly against her life and health. The statute regards her as the victim of crime, not as the criminal; as the object of protection, rather than of punishment."
Twenty-three years later the court, in State v. Gedicke,
cited the above-quoted language with approval and could still note that abortion "in almost every case endangers the life and health of the woman . . .."
However appropriate considerations of health and safety were in 1849 or 1881, they no longer constitute compelling grounds to justify a restrictive statutory scheme in this area. Today it is universally recognized that complicated surgery poses far less threat to the life and health of the patient than did much simpler operations over one hundred years ago. Today it is authoritatively said that abortion in the first trimester of pregnancy is almost seven times safer than carrying the pregnancy to term.
Moreover, the consequence of restrictive abortion legislation is to produce an increased threat to the health, safety and lives of women. It is a matter of common knowledge that if women cannot obtain abortions from licensed physicians in hospitals or clinics, many subject themselves to the notorious "back-street" abortion or attempt self-abortion, both fraught with the myriad possibilities of mutilation, infection, sterility and death.
In such circumstances, we are not persuaded that there is a compelling state interest in safeguarding the health, safety and lives of its female citizens through the New Jersey abortion statutes.
Nor are considerations involving the control of sexual behavior or population growth sufficient to justify the prohibitory abortion laws. The question here is not whether state regulation in this area is reasonable, but whether restrictive abortion legislation is so compellingly related to achieving the desired goal that interference with a woman's right of privacy is permissible.
The State has already implemented its power to regulate sexual behavior by the enactment of statutes providing criminal sanctions for engaging in the primary activity sought to be regulated, fornication and adultery.
As to the interest of the State in fostering population growth, no substantial let alone compelling reason has been advanced that could override the private right of a woman to seek an abortion early in pregnancy, especially in a densely populated and heavily urbanized state like New Jersey, with its attendant demographic, economic, sociological and ecological problems. Hence, these contentions must also fail.
Finally, we reach the assertion of the Attorney General and amici that the State has a compelling interest in preserving the life of the embryo or fetus which justifies the prohibitive abortion legislation. This contention invites judicial resolution of substantial questions of medical, philosophic and religious dimensions as to whether an embryo or fetus is a human being from the moment of conception. Numerous articles, many written by authorities in these fields, have been submitted to us purporting to conclusively settle the multitude of issues raised by this question. As stated by Justice Douglas in United States v. Vuitch:
"Abortion statutes deal with conduct which is heavily weighted with religious teachings and ethical concepts. n.1 Mr. Justice Jackson once spoke of the 'treacherous grounds we tread when we undertake to translate ethical concepts into legal ones, case by case.' Jordan v. De George, 341 U.S. 223, 242 [71 S. Ct. 703, 713, 95 L. Ed. 886] (dissenting opinion)."
n.1 'There remains the moral issue of abortion as murder. We submit that this is insoluble, a matter of religious philosophy and religious principle and not a matter of fact. We suggest that those who believe abortion is murder need not avail themselves of it. On the other hand, we do not believe that such conviction should limit the freedom of those not bound by identical religious conviction. Although the moral issue hangs like a threatening cloud over any open discussion of abortion, the moral issues are not all one-sided. The psychoanalyst Erik Erikson stated the other side well when he suggested that "The most deadly of all possible sins is the mutilation of a child's spirit." There can be nothing more destructive to a child's spirit than being unwanted, and there are few things more disruptive to a woman's spirit than being forced without love or need into motherhood.' The Right to Abortion: A Psychiatric View 218-219 (Group for the Advancement of Psychiatry, Vol. 7, Pub. No. 75, 1969)."
We are constrained simply to conclude that the great conflict raised by this issue is beyond the competence of judicial resolution.
It is noteworthy here, however, that the New Jersey Legislature has not afforded the embryo or fetus the rights of a living person. It has never abrogated the common law rule that self-abortion prior to quickening is not a criminal offense.
Until the recent decision holding the death penalty unconstitutional in New Jersey
a pregnant woman could be executed prior to quickening.117a Moreover, a wrongful death action for a stillborn fetus is not maintainable in New Jersey
and a fetus must be born alive to invoke the rights that have been statutorily created for its benefit.
In these circumstances we find ourselves persuaded by and in agreement with the language of the court in Babbitz v. McCann
"Upon a balancing of the relevant interests, we hold that a woman's right to refuse to carry an embryo during the early months of pregnancy may not be invaded by the state without a more compelling public necessity than is reflected in the statute in question. When measured against the claimed 'rights' of an embryo of four months or less, we hold that the mother's right transcends that of such an embryo.
* * *
"it is sufficient to conclude that the mother's interests are superior to that of an unquickened embryo, whether the embryo is mere protoplasm, as the plaintiff contends, or a human being . . .."
Nothing that has been said herein precludes the state, under its police powers, from establishing reasonable standards of safety in the conditions under which abortion services may be rendered.
Young Women's Christian Association of Princeton, New Jersey, et al. v. Kugler, Civ. No. 264-70:
The motion for summary judgment on the petition of plaintiff-physicians for declaratory relief that N.J.S.A. 2A:87-1 is unconstitutionally vague and that N.J.S.A. 2A:87-1 and 45:9-16 violate plaintiff-physicians' and their women patients' right to privacy in the physician-patient relationship is granted;
The prayer for injunctive relief is denied;
The prayers of plaintiff-physicians Sherwin H. Raymond, M.D., and Ralph Dean Cavalli, M.D., for expungement of their criminal records resulting from convictions under the New Jersey abortion statute, and the return of their medical licenses, verging as they do on injunctive relief, are denied.
The motion of the Attorney General to dismiss the complaint is denied as to plaintiff-physicians and granted as to all other plaintiffs.
Abramowitz, et al. v. Kugler, et al., Civ. No. 431-70:
The motion of the Attorney General to dismiss the complaint is granted.
Each party shall bear its own costs. Plaintiffs in Young Women's Christian Association of Princeton, New Jersey, et al. v. Kugler shall submit an appropriate order on notice to the other parties.